A trademark is generic when it is used to identify a category as a whole rather than identify the source for a specific product or service. Generic marks therefore, fail to merit trademark protection. Even marks that have trademark protection may lose it if, through extensive use by other brands within the category, they become associated with a category rather than a specific brand.
A genericness survey typically seeks to assess whether relevant consumers consider a mark to be a common name or design, or a brand name or design. If consumers believe the mark is a common name, it provides strong evidence that the mark is generic. Similarly, if consumers believe the mark is associated with a single brand, the evidence is strong that the mark is not generic.
There are two main types of genericness surveys: a Teflon survey and a Thermos survey. The Teflon survey is more commonly used in genericness cases.
After screening for qualified respondents, the survey should explain to respondents what is meant by the terms "common or generic name" and "brand name."
The start of the survey also provides examples of each, most likely related to the product or service category of interest. Two examples of each term seem to be sufficient to educate respondents about the meaning of each term.
Ms. Harper has conducted thousands of surveys, hundreds of them for litigation purposes. Genericness surveys is a specialty and Harper ensures that she selects the correct universe and the most appropriate methodology. She uses state-of-the art survey tools, hosting platforms, and works with only the best-in-class sample companies.